Differences

This shows you the differences between two versions of the page.

Link to this comparison view

Both sides previous revisionPrevious revision
Next revision
Previous revision
breakdown_dismissal_letter [2018/12/06 22:59] Carlos Pedrazabreakdown_dismissal_letter [2019/09/20 12:38] (current) – [Unprotected Elements] Carlos Pedraza
Line 1: Line 1:
 {{:copied_elements.jpg|}} {{:copied_elements.jpg|}}
-<fs smaller>**SUPERFICIAL SIMILARITIES?** The defense's grounds for dismissing the copyright lawsuit against //Star Trek: Discovery// dismiss the similarities between it and the Tardigrades videogame as "generic."</fs>+<fs smaller>**SUPERFICIAL SIMILARITIES?** The defense's grounds for dismissing the copyright lawsuit against //Star Trek: Discovery// call the similarities between it and the Tardigrades videogame "generic."</fs>
  
-====== Breaking Down the Case for Dismissing the Tardigrades Suit ======+<fs x-small>DECEMBER 6, 2018<wrap indent> |</wrap><wrap indent> ESTIMATED READING TIME 13 MINS</wrap></fs>
  
-//**CBS Lawyer Details Fundamental Flaws in Copyright Infringement Case Against Star Trek: Discovery**//+====== The Case For and Against Dismissing the Tardigrades Suit ====== 
 + 
 +//**Plaintiff Replies to Flaws Found by CBS Lawyer in Copyright Infringement Case Against Star Trek: Discovery**//
  
 {{TOC}} {{TOC}}
Line 11: Line 13:
 Just what's wrong with the lawsuit against CBS and Netflix over //Star Trek: Discovery//, which developer Anas Abdin claims infringes on his unreleased videogame, Tardigrades? Just what's wrong with the lawsuit against CBS and Netflix over //Star Trek: Discovery//, which developer Anas Abdin claims infringes on his unreleased videogame, Tardigrades?
  
-In a December 3, 2018, letter to U.S. District Court [[Judge Naomi Reice Buchwald]], attorney Wook Hwang spelled out precisely why he believed the case shouldn't move forward: Essentially, that Abdin's claims that //Discovery// stole his ideas, and that Netflix (//Discovery//'s international distributor) is equally liable, don't hold up under the law.+In a December 3, 2018, letter to the U.S. District Court  judge in the case, attorney Wook Hwang spelled out precisely why he believed the case shouldn't move forward: Essentially, that Abdin's claims that //Discovery// stole his ideas, and that Netflix (//Discovery//'s international distributor) is equally liable, don't hold up under the law. 
 + 
 +For his part, Abdin replied through his lawyers, [[tardigrade_lawsuit_trouble#plaintiff_s_attorneys|John Johnson and Allan Chan]], on December 5 with a letter to the judge answering Hwang's criticism. 
 + 
 +<WRAP right round important 320px> 
 +<wrap em>UPDATE: New Judge</wrap> \\ 
 +<fs smaller>The Tardigrades lawsuit was assigned to another judge, [[tardigrades_pre_motion#lawsuit_fails_to_state_a_claim|Lorna G. Schofield]], on December 11, 2018.</fs> 
 +</WRAP>
  
 <WRAP center 95%> <WRAP center 95%>
-<fs smaller>**//See also: [[tardigrades_pre_motion|CBS Seeks Meeting with Judge to Dismiss Copyright Case Against Discovery]]//**</fs>+<fs smaller>**//See also: [[tardigrades_pre_motion|CBS Seeks Meeting with Judge to Dismiss Copyright Case Against Discovery]] and [[tardigrades_third_complaint|Copyright Lawsuit Names Discovery Writer as Possible Link]]//**</fs>
 </WRAP> </WRAP>
  
-===== Substantially Similar? =====+===== Conference Scheduled =====
  
-<WRAP right round important 50%> +U.S. District Judge Lorna G. Schofield scheduled a pre-motion conference regarding the defense's planned motion to dismiss the case. That conference will be January 8, 2019, in New York. Ahead of that meeting, each side must filed a status letter and case management plan by January 2. 
-<wrap em>Plaintiff'Response</wrap> \\ +  
-<fs smaller>Lawyers for Anas Abdin submitted letter to Judge Buchwald December 52018replying to the grounds for dismissal cited by CBS and Netflix two days beforeThe reply will be detailed here later today.</fs> +===== 'In the Plaintiff'Favor' ===== 
-</WRAP>+ 
 +Abdin's lawyers questioned the propriety of any motion to dismiss their case based on the defense's arguments to the judge, citing federal rules of civil procedure by quoting //Arma v. Buyseasons Inc.//: 
 + 
 +In considering motion to dismiss … the court construes the complaint liberally"accepting all factual allegations in the complaint as trueand drawing all reasonable inferences in the plaintiff's favor."((Abdin v. CBS Broadcasting Incet al., Docket 39, p. 2, 12/05/18.)) 
 + 
 +However, Hwang's letter did not argue against the facts Abdin asserted in his suit, but on whether his lawyers properly applied the relevant law to those facts. In her upcoming ruling, the judge will decide which interpretation of civil procedure to follow. 
 + 
 +===== Substantially Similar? =====
  
-At the heart of CBS/Netflix's defense is the idea that //Discovery// and Tardigrades, despite some superficial similarities, are not substantially similar — a critical test against which [[copyright infringement]] claims must bear up.+At the heart of CBS/Netflix's defense is the idea that //Discovery// and Tardigrades, despite some superficial similarities, are not substantially similar — a critical test against which [[copyright infringement]] claims must hold up.
  
-<WRAP right round info 50%>+<WRAP right round info 320px>
 [{{:two_tardigrades.jpg?direct|<fs smaller>//Do these two versions of tardigrades evince the same 'aesthetic appeal'? <fs x-small>Click image to view full size</fs>.//</fs>}}] [{{:two_tardigrades.jpg?direct|<fs smaller>//Do these two versions of tardigrades evince the same 'aesthetic appeal'? <fs x-small>Click image to view full size</fs>.//</fs>}}]
 <wrap lo>**What is Substantial Similarity?** \\ <wrap lo>**What is Substantial Similarity?** \\
-<wrap indent>According to the American Bar Association, in [[copyright infringement]] cases courts traditionally test for substantial similarity using "a subjective, factual analysis called the 'audience test,'" whose goal is to see if ordinary observers, unless they set out to detect the differences between the works, "would regard their aesthetic appeal as the same."</wrap>(([[http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/part_2_elements_of_a_copyright.html|An Overview of the Elements of a Copyright Infringement Cause of Action, — Part II: Improper Appropriation]], by Jason Sloane, retrieved 12/8/16.))+<wrap indent>According to the American Bar Association, in [[copyright infringement]] cases courts traditionally test for substantial similarity using "a subjective, factual analysis called the 'audience test,'" whose goal is to see if ordinary observers, unless they set out to detect the differences between the works, "would regard their aesthetic appeal as the same."</wrap>(([[http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/part_2_elements_of_a_copyright.html|An Overview of the Elements of a Copyright Infringement Cause of Action, — Part II: Improper Appropriation]], by Jason Sloane, retrieved 12/08/16.))
 \\ \\
 <wrap indent> <wrap indent>
-Moreover, the audience test "asks whether the defendant wrongly copied enough of the plaintiff’s protected expression to cause a reasonable lay observer to immediately detect the similarities between the plaintiff’s expression and the defendant’s work, without any aid or suggestion from others."(([[http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/part_2_elements_of_a_copyright.html|An Overview of the Elements of a Copyright Infringement Cause of Action, — Part II: Improper Appropriation]], by Jason Sloane, retrieved 12/8/16.))</wrap></wrap>+Moreover, the audience test "asks whether the defendant wrongly copied enough of the plaintiff’s protected expression to cause a reasonable lay observer to immediately detect the similarities between the plaintiff’s expression and the defendant’s work, without any aid or suggestion from others."(([[http://www.americanbar.org/groups/young_lawyers/publications/the_101_201_practice_series/part_2_elements_of_a_copyright.html|An Overview of the Elements of a Copyright Infringement Cause of Action, — Part II: Improper Appropriation]], by Jason Sloane, retrieved 12/08/16.))</wrap></wrap>
 </WRAP> </WRAP>
 +
 +Abdin's lawyers argued "the proof that a lay observer would not overlook the similarities [between Tardigrades and //Discovery//] can be found in the many YouTube and gamer websites' discussions" of the case.((Abdin v. CBS Broadcasting Inc. et al., Docket 39, pp. 2-3, 12/05/18.))
 +
 +Of course, many of those commenters, possibly predisposed to advocating for independent videogame developers, do not understand copyright, particularly its not protecting ideas, only expressions of ideas. Hwang cited the 2010 case, //Peter F. Gaito Architecture, LLC v. Simone Development Corp.// to assert that the lay observers who count are those who would qualify to sit on a jury.
 +
 +Furthermore, Hwang argued, a trial would include instructing jurors about how copyright law should be applied. "No reasonable jury," he quoted from //Gaito//,  "<wrap hi>properly instructed</wrap>, could find that the two works are substantially similar."((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 2, 12/03/18.))
  
 ==== Four Remedies for Infringement ==== ==== Four Remedies for Infringement ====
Line 44: Line 66:
   * Attorneys' fees and costs.   * Attorneys' fees and costs.
 </WRAP> </WRAP>
 +
 +In their reply Abdin's lawyers struck back at Hwang's analysis, saying, "The defendants have misrepresented the factual scenario [in] this matter and therefore attempt to conform the misrepresentation to the law."
  
 ==== Other Copyright Violations ==== ==== Other Copyright Violations ====
  
-According to Hwang, Abdin's suite also alleges violations of the international Berne Convention, an international agreement regarding copyright and the Visual Artists Rights Act of 1990 (VARA).+According to Hwang, Abdin's suite also alleges violations of the Berne Convention, an international copyright agreement, and the Visual Artists Rights Act of 1990 (VARA).
  
 ==== Unprotected Elements ==== ==== Unprotected Elements ====
Line 62: Line 86:
 //**__CBS attorney Wook Hwang criticized Anas Abdin’s 'bare and speculative allegations' that any of the defendants had the access to actually copy Abdin’s unreleased videogame.__**// <wrap indent>//— 'No Proof of Access'//</wrap> //**__CBS attorney Wook Hwang criticized Anas Abdin’s 'bare and speculative allegations' that any of the defendants had the access to actually copy Abdin’s unreleased videogame.__**// <wrap indent>//— 'No Proof of Access'//</wrap>
 </WRAP> </WRAP>
 +
 +In their reply, Abdin's lawyers acknowledged tardigrades were a creature found in nature but that "via his imagination and ingenuity" Abdin's description of his game centered on a "giant blue Tardigrade that travels instantly throughout the world of outer space," an ability that does not exist in nature. //Discovery//'s tardigrade, however, is not blue. The creature is brown, though depicted in some scenes bathed in blue light, a common lighting treatment in sci-fi film and television.
 +
 +Abdin's attorneys went on to describe "the tardigrade's power of instantaneous space travel was the central theme of the show [//Star Trek: Discovery//]."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 2, 12/05/18.)) Presumably, the central theme of the show was Michael Burnham's redemption after violating Starfleet principles to start the Klingon war; the means of travel employed by a starship was part of the show's setting not its theme.
 +
 +In a claim echoed throughout the letter, Abdin's attorneys cited case law demonstrating his version of a tardigrade deserved copyright protection, including //DeBecdelievre v. Anastasia Musical LLC//, which found that where facts (such as teleporting tardigrades) "do not exist and are created from the imagination, copyrightable protection exists for the creation."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 1, 12/05/18.))
 +
 +However, Hwang's letter does not argue Abdin cannot copyright his version of a space-traveling tardigrade. He only disputes whether that copyright extends beyond Abdin's particular depiction of such a creature to protect the very idea of a tardigrade that can travel through space; copyright law, of course, doesn't protect ideas, only their specific expression.
 +
 +[{{ ::donny_domino.jpg?300|**DOMINO'S PIZZA'S** humanized domino figures in the dispute over whether Anas Abdin can claim copyright to all enlarged tardigrades.}}]
  
 === Human Domino === === Human Domino ===
  
-Abdin's claim that his adaptation of actual tardigrades cannot be protected by copyright either, Hwang noted, as the idea naturally flowed from the very idea of a tardigrade-based character. Hwang pointed to a relevant case involving Domino's Pizza human-sized domino character in the 1997 case //Ollie v. Domino's Pizza, Inc.//, which found that "the humanizing of a domino is an idea not subject to copyright protection."((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 3, 12/03/18.))+Furthermore, Hwang argued, Abdin'cannot claim his space-faring adaptation of actual tardigrades is protected by copyright, as the idea naturally flowed from the very notion of a tardigrade-based character. Hwang pointed to a relevant case involving Domino's Pizza human-sized domino character in the 1997 case //Ollie v. Domino's Pizza, Inc.//, which found that "the humanizing of a domino is an idea not subject to copyright protection."((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 3, 12/03/18.))
  
-=== Trek Tardigrades Predate Videogame ===+Abdin's lawyers countered that Hwang misused the Domino's case's conclusions: 
 + 
 +> The court in //Ollie// held that the two figures were wholly different … "although the Dominoid and Donny Domino are similar, in that their bodies consist of a domino with one dot in the top square and two dots in the bottom square, the court find the this similarity is attributable to the fact that both works used Domino's trademarked domino as the body. … However, the humanizing of a domino is an idea not subject to copyright protection."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 3, 12/05/18.)) 
 + 
 +{{anchor:storyboard}} 
 +That last sentence, however, is precisely how Hwang cited the //Ollie// case. 
 +---- 
 +<WRAP> 
 +//**__« It’s as if the plaintiff’s original work was used as a storyboard for the development of //Star Trek: Discovery.// »__**// <wrap indent>//— Attorneys for Anas Abdin//</wrap> 
 +</WRAP>
  
 Furthermore, Hwang noted that the notion of tardigrades in Star Trek predated Abdin's 2014 publication of his game's concepts, pointing to a 2013 [[https://blogs.scientificamerican.com/but-not-simpler/how-tardigrades-saved-the-enterprise/|Scientific American article]] by Kyle Hill, "How Tardigrades Saved the Enterprise," in which the author opined "that Captain Kirk should have used tardigrades to save U.S.S. Enterprise in … //Star Trek Into Darkness//).((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 3, 12/03/18.)) Furthermore, Hwang noted that the notion of tardigrades in Star Trek predated Abdin's 2014 publication of his game's concepts, pointing to a 2013 [[https://blogs.scientificamerican.com/but-not-simpler/how-tardigrades-saved-the-enterprise/|Scientific American article]] by Kyle Hill, "How Tardigrades Saved the Enterprise," in which the author opined "that Captain Kirk should have used tardigrades to save U.S.S. Enterprise in … //Star Trek Into Darkness//).((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 3, 12/03/18.))
  
-=== Generic Similarities ===+That article, however, only attached the idea of tardigrades to Star Trek, according to Abdin's lawyers; it "does not in any way state that tardigrades could be used for instantaneous space travel or are the size of human beings."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 3, 12/05/18.)) 
 + 
 +=== 'GenericSimilarities ===
  
 Having dispensed with the tardigrade's lack of copyright protection, Hwang said all that remained of Abdin's case were “random similarities scattered throughout the works, which cannot support a finding of substantial similarity."((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 3, 12/03/18.)) Hwang addressed Abdin's examples of alleged copying: Having dispensed with the tardigrade's lack of copyright protection, Hwang said all that remained of Abdin's case were “random similarities scattered throughout the works, which cannot support a finding of substantial similarity."((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 3, 12/03/18.)) Hwang addressed Abdin's examples of alleged copying:
Line 108: Line 153:
  
 Since the legal complaint provided no other means by which CBS/Netflix could determine what other materials posted on those sites might have been infringed upon, Hwang said Abdin did not satisfy "well-settled pleading requirements"; therefore, the case should be dismissed."((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 4, 12/03/18.)) Since the legal complaint provided no other means by which CBS/Netflix could determine what other materials posted on those sites might have been infringed upon, Hwang said Abdin did not satisfy "well-settled pleading requirements"; therefore, the case should be dismissed."((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 4, 12/03/18.))
 +
 +Abdin's lawyers countered his treatment "provides defendants with a list of the allegedly infringed items," and offered to amend the legal complaint to provide more specificity, and that the [[discovery|legal discovery]] process would address the issue.
  
 ==== No Proof of Access ==== ==== No Proof of Access ====
Line 113: Line 160:
 Crucially, Hwang noted, Abdin failed to demonstrate //Discovery//'s creators even knew about Abdin's game prior to his initial complaint to CBS — such access is a critical part of making a case for copyright infringement. Crucially, Hwang noted, Abdin failed to demonstrate //Discovery//'s creators even knew about Abdin's game prior to his initial complaint to CBS — such access is a critical part of making a case for copyright infringement.
  
-Hwang criticized Abdin's "bare and speculative allegations" that any of the Defendants had the access to actually copy Abdin's work. To establish access Abdin must "plausibly allege either: (1) a particular chain of events or a link from his work to the creators of the allegedly infringing work, or (2) that plaintiff's work was widely disseminated.”((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 4, 12/03/18.))+Hwang criticized Abdin's "[[tardigrade_october#access_to_the_original_work|bare and speculative allegations]]" that any of the Defendants had the access to actually copy Abdin's work. To establish access Abdin must "plausibly allege either: (1) a particular chain of events or a link from his work to the creators of the allegedly infringing work, or (2) that plaintiff's work was widely disseminated.”((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 4, 12/03/18.))
  
-Instead, Abdin offers no such chain of events or link between his game and //Discovery//'s development, nor does his postings on various websites constitute wide dissemination, according to the 2008 case, //O'Keefe v. Ogilvy & Mather Worldwide, Inc.,// which established "the mere fact that [a plaintiff’s] work was posted on the internet prior to the creation of defendants’ work is insufficient by itself to demonstrate wide dissemination."((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 4, 12/03/18.))+Instead, Abdin offers no such chain of events or link between his game and //Discovery//'s development, nor do his postings on various websites constitute wide dissemination, according to the 2008 case, //O'Keefe v. Ogilvy & Mather Worldwide, Inc.,// which established "the mere fact that [a plaintiff’s] work was posted on the internet prior to the creation of defendants’ work is insufficient by itself to demonstrate wide dissemination."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 4, 12/05/18.))
  
 +However, "the defendants' use of words such as 'unreleased' [and] 'a few websites,' is wholly misleading," Abdin's lawyers charged. "Hundreds of thousands of interested fans viewed the [Tardigrades game's] treatment, thereby establishing a question of fact as to the defendants' access."((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 1, 12/05/18.))
 +
 +However, neither Abdin's legal complaint nor this letter [[tardigrade_october#access_to_the_original_work|offered evidence]] substantiating his claimed "hundreds of thousands of fans."
 +
 +<WRAP right round info 320px>
 +<fs smaller>**COPYRIGHT CERTIFICATE** The copyright registration listed in the U.S. Copyright Office's database for Anas Abdin's Tardigrades refers to Tardigrades as "text, artwork," not a videogame.</fs> \\ [{{::tardigrades_copyright.jpg?direct|<fs x-small>//Source: U.S. Copyright Office//</fs>}}]
 +</WRAP>
 ==== Late Copyright Registration ==== ==== Late Copyright Registration ====
  
Line 123: Line 177:
 "Even where the alleged infringement begins before registration and continues after registration, statutory damages and attorney fees are still unavailable," Hwang cited from the 2016 case, //Solid Oak Sketches, LLC v. 2K Games, Inc.// "Even where the alleged infringement begins before registration and continues after registration, statutory damages and attorney fees are still unavailable," Hwang cited from the 2016 case, //Solid Oak Sketches, LLC v. 2K Games, Inc.//
  
-==== Not Covered Under Berne Convention, Visual Artists' Law ====+Abdin's lawyers failed to address how his late copyright registration entitled him to statutory damages and attorneys' fees. Instead, the letter claimed Abdin was entitled to such damages and fees by virtue of the [[https://www.americansforthearts.org/by-program/networks-and-councils/public-art-network/faq/what-is-vara|Visual Artists Rights Act]] of 1990 (VARA), which recognizes under American law the concept of creators’ lasting moral rights to their work. 
 + 
 +If Hwang's reasoning is correct, however, Abdin may not be able to rely on VARA for the damages and fees he's seeking. 
 + 
 +=== Not Covered Under Berne Convention, Visual Artists' Law ===
  
-Abdin's claims under the international copyright agreement, the [[wp>Berne_Convention|Berne Convention]], and the [[https://www.americansforthearts.org/by-program/networks-and-councils/public-art-network/faq/what-is-vara|Visual Artists Rights Act]] (VARA), which recognizes under American law the concept of creators’ lasting moral rights to their work.+Abdin'legal complaint included claims under the international copyright agreement, the [[wp>Berne_Convention|Berne Convention]], and VARA.
  
 Hwang dispensed with both these claims by arguing: Hwang dispensed with both these claims by arguing:
Line 132: Line 190:
   * VARA offers no protection to the Tardigrades game, which fails to meet the legal definition of "works of visual art — a narrow class of art defined to include paintings, drawings, prints, sculptures, or photographs produced for exhibition purposes, existing in a single copy or limited edition of 200 copies or fewer.”((Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 87 (2d Cir. 1995); 17 U.S.C. § 101.)) Abdin's treatment — the only tangible work submitted with his legal complaint — "falls within none of these categories."((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 5, 12/03/18.))   * VARA offers no protection to the Tardigrades game, which fails to meet the legal definition of "works of visual art — a narrow class of art defined to include paintings, drawings, prints, sculptures, or photographs produced for exhibition purposes, existing in a single copy or limited edition of 200 copies or fewer.”((Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 87 (2d Cir. 1995); 17 U.S.C. § 101.)) Abdin's treatment — the only tangible work submitted with his legal complaint — "falls within none of these categories."((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 5, 12/03/18.))
 </WRAP> </WRAP>
 +
 +While Abdin's response failed to address the Berne Convention argument at all, his attorneys doubled down on VARA's application to the Tardigrades game, stating, "Defendants dismiss [Abdin's] VARA claims while on the other hand admitting the plaintiff established 'comic book-style' artwork. … It's as if the plaintiff's original work was used as a storyboard for the development of //Star Trek: Discovery.//"((Abdin v. CBS Broadcasting Inc. et al., Docket 39, p. 2, 12/05/18.))
 +
 +However, VARA does not protect //all// forms of visual art, only very specific kinds, as noted in "A Guide to the Visual Artists Rights Act":
 +
 +> VARA covers only <wrap hi>limited, fine art categories of "works of visual art"</wrap>: paintings, sculptures, drawings, prints, still photographs produced for exhibition. Within this group, <wrap hi>only single copies or signed and numbered limited editions of 200 or less are actually protected</wrap>. VARA does not apply to any of the following: works made for hire, posters, maps, globes or charts, technical drawings, diagrams, models, applied art, <wrap hi>motion pictures, books and other publications, electronic publications</wrap>, merchandising items or advertising, promotional, descriptive, covering, packaging material or container, nor does it cover any work not subject to general copyright protection.(([[http://www.law.harvard.edu/faculty/martin/art_law/esworthy.htm|"A Guide to the Visual Artists Rights Act," Cynthia Esworthy]], NEA Office of General Counsel, JD Washington & Lee Law School, 1997; retrieved 12/06/18.))
 +
 +Abdin's work, all electronic publications, including its "comic book-style artwork," do not appear to meet VARA's definition of protected visual art.
  
 [{{ :netflix-star-trek.jpg?350|**OUT OF BOUNDS?** The defense alleges Netflix's international distribution of //Star Trek: Discovery// places it beyond U.S. copyright jurisdiction.}}] [{{ :netflix-star-trek.jpg?350|**OUT OF BOUNDS?** The defense alleges Netflix's international distribution of //Star Trek: Discovery// places it beyond U.S. copyright jurisdiction.}}]
Line 141: Line 207:
 > The only domestic act attributed to Netflix is [according to Abdin] having “entered into a contract in the United States with the CBS defendants.” … But the mere act of licensing allegedly infringing works for foreign use does not constitute copyright infringement. See, e.g., //Fun-Damental Too, Ltd. v. Gemmy Indus. Corp// (1996), (“mere authorization and approval [in the United States] of copyright infringements taking place outside the United States is not a copyright violation and does not create jurisdiction over those extraterritorial acts”).((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 5, 12/03/18.)) > The only domestic act attributed to Netflix is [according to Abdin] having “entered into a contract in the United States with the CBS defendants.” … But the mere act of licensing allegedly infringing works for foreign use does not constitute copyright infringement. See, e.g., //Fun-Damental Too, Ltd. v. Gemmy Indus. Corp// (1996), (“mere authorization and approval [in the United States] of copyright infringements taking place outside the United States is not a copyright violation and does not create jurisdiction over those extraterritorial acts”).((Abdin v. CBS Broadcasting Inc. et al., Docket 34, p. 5, 12/03/18.))
  
-===== Answer Due =====+While that principle is well established, Abdin's attorneys note, there is an exception "when the type of infringement permits further reproduction abroad." It's unclear, though, how exactly the case they cite, //Peter Starr Prod. Co. v. Twin Continental Films Inc.//, decided in 1986, would apply to digital streaming used by Netflix three decades later. {{:axamonitor-ico.gif?nolink|}}
  
-Abdin'reply to CBS' proposed grounds for dismissal were due to the judge by December 6{{page>footer}} {{tag>Tardigrades_lawsuit copyright Star_ Trek_Discovery CBS Netflix}}+<WRAP tip 75%> 
 +<wrap em>COMMENTS</wrap> \\ 
 +Discuss this article in [[face>groups/axamonitor/permalink/535976436917208/|AxaMonitor'Facebook group]]. 
 +</WRAP> 
 +---- 
 +**Keywords** 
 + {{tag>Tardigrades_lawsuit copyright Star_ Trek_Discovery CBS Netflix}}